JOHNY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner and the 5th respondent were teachers of a School belonging to the 4th respondent Manager. THE petitioner was first appointed on 23-9-1974 and the 5th respondent on 15-10-1974. THEy both were relieved on 31-3-1975 in terms of R. 49 of Chapter XIV A of the Kerala Education Rules. THEy were re-appointed on 2-6-197 5. In july 1977 vacancy arose in the school for the post of a High School Assistant. Both the petitioner and the 5th respondent were applicants for the post. THE question was who was senior for the purpose of promotion. THE petitioner claimed that he was senior, for his service had commenced in the school prior to that of the 5th respondent. THE 5th respondent, however, contended that they both had the same length of continuous service as they were re-appointed on the very same day, viz. , 2-5-1975. She therefore contended that, in terms of R. 37 (2), she, being older in age, was entitled to be regarded as senior. Her claim to seniority on that basis was accepted by the management and affirmed by the District Educational Officer who rejected the petitioner's appeal (Ext. P2 ). THE decision of the D. E. O. was challenged by the petitioner by Ext. P 4 before the Regional Deputy Director of public Instruction, who by Ext. P5 accepted, the petitioner's case. Against ext. P5, the 5th respondent approached the Government by means of a revision (Ext. P6 ). THE Government by Ext. P8 accepted the 5th respondent's contention and held that she was senior to the petitioner. THE question is whether the decision of the Government which is now impugned is correct in terms of R. 37 of chapter XIV A of the Kerala Education Rules. Rule 37 reads: " (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided be is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit, whose date of first appointment is the same, seniority shall be decided with reference to age, the older being senior. " THE question is not directly answered by R. 37. Sub-rule (1) only says that the length of continuous service determines seniority. But how is seniority determined between persons having equal length of continuous service is not stated in Sub-rule (1) But Sub-rule (2) refers to persons whose first appointment falls on the very same day, in which event seniority shall be decided with reference to age. Admittedly the first appointment of these two persons did not fall on the very same day, for, the petitioner was appointed, 3 weeks earlier. But their continuous service commenced on the same day. No, guidance is thus directly indicated under R. 37.

(2.) PETITIONER's counsel Shri P. G. Parameswara Panicker, seeks guidance from other provisions. He refers to R. 51a of Chapter XIV A, which reads: '51 A. Qualified teachers who are relieved as per R. 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies, in schools under the same Educational Agency, provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. Note: If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given first preference Note 2:

(3.) IT is true that there is nothing to indicate that r. 37 (2) is intended to be retrospective. Nevertheless the amendment or R. 37 (2)shows that the purpose for which the new provision was substituted for the old was to remove the anamaly or lack of clarity in the old provision. That is why it is made clear in the new provision While the new provision is not retrospective, the filling in of the lacuna applies the guide to the problem raised by the lack of clarity under R. 37as it originally stood. In the absence of any clear answer to the question as to what happens When two persons have the same length of continuous service, but the first appointment of one of them fell on an earlier date, has to a decided with reference to the other provision under the rules. Counsel for the petitioner is justified seeking guidance from R. 51 A. That meaning is not only consistent with the clarification that has been adopted by the subsequent amendment of R. 37 (2) but it is also in accordance with the principle of justice and equity. He who was first appointed must be senior, notwithstanding the break in service by reason of R. 49. The seniority cannot therefor be decided with reference to age when the first appointment of the petitioner was earlier that that of the 5th respondent.